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Monthly Archives: May 2013

Regular readers are aware that I have a particular interest in the frequently uncomfortable overlap between religion (and philosophical beliefs) and employment law. This month has provided more examples of moral dilemmas and what might at first appear to be unexpected outcomes which push the boundaries of jurisprudence, even in what would otherwise be mundane cases.
“I cannot tell a lie”
A tribunal in Birmingham has heard a case brought by a Christian telesales who complained that he was, contrary to his beliefs, required to lie in order to make sales. In Hawkins v Universal Utilities Ltd t/a Unicorn. Mr Hawkins commenced work on 22 February 2012. Things did not go well. He was told during his induction to “be creative” when speaking with PAs and secretaries and made a note that the trainer advised him “to lie”. He felt by the end of the first day “that he would end up in an employment tribunal”.
He was dismissed two days later because he had failed to meet his targets. His employment tribunal claim duly followed.
Significantly, the Tribunal found that a belief that an individual should not tell lies under any circumstances is a protected philosophical belief under the Equality Act 2010.

In 2011 Mr John Healey, described as “an experienced litigator”, brought an Employment Tribunal claim against Wincanton Group. The case came before Employment Judge Robinson sitting in Liverpool, was duly heard, and the tribunal reserved its decision. So far, so good.
Unfortunately, Employment Judge Robinson’s memory failed him with disastrous consequences for the eventual judgment, which went against Mr Healey. It transpired, as Judge Robinson did recall before giving the judgment, that previously he had acted for Mr Healey in his capacity as a partner at Jackson & Canter. Furthermore, in 1998, he had dismissed a claim brought before him by Mr Healey – a decision overturned by the Employment Appeal Tribunal on the basis of the appearance of bias. The Judge should not have heard the case or continued with it after actual knowledge.
Apparently Mr Healey’s memory was better than that of the judge (who in fairness cannot perhaps be expected to remember every client and every party before him during his career), but he was unaware that he could have applied for the judge to recuse himself, and so kept his silence. When he lost, however, he appealed on the grounds of bias. It is all the more remarkable that, although Judge Robinson might not remember all the cases he had dealt with, one would have thought that he would be very likely to have remembered one which was the subject of a successful appeal on the ground of bias. However that was not the case, or at least not until well into the case, and history therefore repeated itself.

The Government has settled on the rates of National Minimum Wage, as proposed by the Independent Low Pay Commission, to come into effect on 1 October 2013.
The announcement had been delayed for a month, prompting speculation that the Government might freeze the rates but Business Secretary Vince Cable said that he was confident that the increases struck the right balance.
In a similar vein the CBI welcomed the “careful balance” that had been struck; the TUC was more reserved, noting that it would have liked to have seen a higher increase, but focused more on ensuring that there is proper enforcement of the NMW rates.
However Adam Marshall, director of policy at the British Chambers of Commerce was disappointed with what he pointed out were increases averaging 1.9%:
While the pressures of inflation are affecting many people, including the lowest-paid, the scale of this rise adds significantly to business costs, most of all by contributing to broader pay inflation. It will also make some employers less inclined to hire additional members of staff.
The new rates are as follows:

On 25 April 2013, the Enterprise & Regulatory Reform Act became law, on receiving Royal Assent.
It is an enormous Act and, quite frankly, a thorough hotch-potch. There are Parts covering the UK Green Investment Bank, abolition of the Competition Commission, laws concerning cartels, the appointment of bankruptcy adjudicators, copyright law and rules concerning estate agents. Part 2 (covering sections 7 to 24) is entitled Employment and it brings into law a number of provisions which have been covered by blog posts over the last few months. Where known I have included the relevant commencement dates. Key among them are:

ACAS and conciliation
There is a requirement for the reference of claims to ACAS before implementation, to attempt conciliation, along with extended limitation periods to enable this to happen (sections 7-10 & Sched 2): to those who remember the 2004 dispute resolution procedures, does this idea sound worryingly familiar? In a climate of cutting red tape this looks very much like adding some.
Employment Tribunals
There are changes to the potential make up of both Employment Tribunals and the Employment Appeal Tribunal – the latter to allow more appeals to be heard by a judge sitting alone (sections 11 and 12). As far as Employment Tribunals are concerned “legal officers” will be able to make legal decisions, including those determining proceedings, in place of an employment judge. There can be no doubt that this is nothing more than a cost cutting measure and has little if anything to do with the proper administration of justice.
Qualifying periods (effective 25 June 2013)
Section 13 deals with the removal of any qualifying period for a complaint of unfair dismissal based on political opinion (thus implementing European Court of Human Rights requirements identified in Redfearn v UK).

Termination of pregnancy remains one of the most controversial issues we have in our society. When Parliament legalised it by the Abortion Act 1967, it recognised that, despite all the strict procedural requirements and safeguards it sought to build in, nonetheless this would simply be a step too far for some people in the light of their ethical, moral or religious views.
For this reason, the Abortion Act 1967 contained a “conscientious objection” provision at section 4, whereby nurses and midwifes cannot be required to participate in the termination of a pregnancy.
Fast forward 40 years, and these sorts of concerns are addressed by the Equality Act 2010, which, along with the Regulations that preceded it, offer protection against discrimination on, among other things, grounds of religion of philosophical belief. Yet there has been a swathe of recent cases drawing a distinct line between what is discrimination, and what is simply requiring people to do the job they are employed to do (think about Lillian Ladele, the Registrar who refused to conduct same-sex civil partnership ceremonies, or Mr MacFarlane, refusing to give Relate advice to same-sex couples).
In the light of increasing numbers of terminations, and perhaps spurred on by the mind-set of the Courts, Glasgow Health Board attempted to draw a fine distinction between requiring nurses and midwives to participate directly in the termination of pregnancy (which it would not do), and requiring them to perform duties of delegation, administration and support for those involved in such duties (which it would). The midwives objected that their right of conscientious objection was being eroded, because the performance of any of these duties in connection with a patient admitted to hospital for a termination of pregnancy would give rise to their participation in treatment.
The Outer House of the Scottish Court of Session agreed with the Health Board. Lady Smith – doubtless influenced in a style of interpretation from her extensive sitting in the Employment Appeal Tribunal – considered that the right under the Abortion Act was a limited one, “the word ‘treatment’ being used ‘to denote those activities which directly bring about the termination of the pregnancy'”. Anything else the nurses could legitimately be required to do.
In Doogan & Anor v NHS Greater Glasgow & Clyde Health Board, the Inner House disagreed

Back in the summer of 2012, Mr Justice Underhill presented the results of his fundamental review of the Employment Tribunal procedures. Following a consultation by the Department for Business Innovation and Skills, it was announced that a new set of Rules of Procedure would come into force this year. A final version of the rules has still not been produced for public consumption; most of the recent focus seems to have been on the introduction of fees, rather than the new rules.
We were provided with a “teaser” from BIS in March: there will be new strike out powers to stop weak cases, guidance from the Employment Tribunal Presidents to ensure consistency, simplification of withdrawal/dismissal of claims, and new preliminary hearings combining Pre Hearing Reviews and Case Management Discussions, the distinction between which was always at odds with the supposedly simplified procedure applied in a tribunal.
Nonetheless, the rumour mill has persisted in suggesting introduction dates. In early April, speculation that D-Day would be 12 July 2013 was quickly put down by BIS. Then, in a press release accompanying Royal Assent to the Enterprise & Regulatory Reform Act, BIS announced that measures simplifying the procedures and costs of deciding tribunal cases” would come into force on 25 June 2013. However, BIS were again quick to point out that this did not mean the new Rules of Procedure.
According to Daniel Barnett’s well respected bulletins, BIS advised him that “It is Government’s aim, however to give users of the system as much familiarisation time for the new rules as possible”. So how much time is that likely to be? Judging by other measures introduced in recent months, familiarisation time seems to be somewhere near the bottom of the list of the Government’s priorities.
Could it be that the Government is finding that “simplifying the Rules and keeping down costs” is not as easy an exercise as might have been thought.

Delivered with all the traditional pomp and ceremony that one would expect the Queen’s Speech was made to the combined Houses of Parliament on 8 May, setting out the Government’s legislative programme for the coming year.
Probably of greatest interest to lawyers and other professionals is the removal of the presumption of self-employed status for members of LLPs. Limited Liability Partnerships were introduced a number of years ago as, effectively, a half way house between “old-fashioned” partnerships governed by the provisions of the Partnership Act 1890 and limited companies. As the name suggests, a particularly appealing aspect of the structure has been to limit the liability of a member or partner to the assets of the business, thereby avoiding the risk of personal financial ruin in the event of business failure. In fact, that benefit has been largely diluted in practice as a result of the tendency of banks, other lenders and even regular contractors to require personal guarantees from the members. However, another benefit has been that members, including fixed share members, have been treated as self-employed for tax purposes on the basis that they are, even if only in a very small part, all owners of the business. That, in turn, is significant because the LLP does not have to pay employer’s national insurance contributions (13.8%) and the tax treatment of the individuals is more advantageous to them.
However, the National Insurance Contributions Bill sets out to put paid to such arrangements.

It’s all very well introducing fees across more courts and tribunals in an effort to keep unmeritorious claims away, but there is always the risk of “throwing the baby out with the bath water”. What about the deserving cases of those who simply cannot afford the fees? Legal Aid is less and less likely to be of any assistance – assuming, of course, it is even available for a particular jurisdiction in the first place.
So, having got the bit between its teeth on Employment Tribunal fees, with their complex fee remission arrangements, the Government has decided to look more widely at the whole question of the remission of fees. Various systems have been implemented over time across the whole range of courts and tribunals, and standardisation is now the name of the game.
Accordingly, the Ministry of Justice has launched a consultation on proposals for a single system of fee remissions (waivers) for all fee paying courts and tribunals.
The main changes being proposed include:

Introducing a capital test – at the moment there is no capital test so people with low income but large capital don’t have to pay towards court and tribunal fees, meaning the taxpayer picks up the cost;
Ensuring those who can afford to make a contribution to fees do so – the proposals will mean more contributions from those who can afford it and an income cap to stop high earners receiving remissions;
Making the remission system simpler – bringing in one unified system to cover the whole of the courts and tribunal system, replacing the complicated current arrangements, and calculating fee remissions using monthly salary figures rather than annual salaries so users have more accessible evidence;
Full fees remission for people on specific benefits – ensuring access to justice is maintained for those who cannot afford to pay a contribution to a civil court or tribunal fee.

On 29 May HM Courts & Tribunals Service announced that fees for Employment Tribunals and the Employment Appeal Tribunals will be introduced on 29 July.
Having been in the pipeline for some time now, a draft order allowing for the introduction of fees in these Tribunals, and giving full details of their levels and when they will be payable, has been laid before Parliament. Having said “full details”, many of the provisions allow for fees to be payable on “dates specified”, either in notices accompanying notices of hearing or in notices issued by the Lord Chancellor. Clearly we will need to wait and see the system in action before we know exactly when parties will need to get their cheque books out.
The Draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 has prompted a surge in claim numbers as people seek to pre-empt the introduction of the fees regime.
They specify in Part 2 that fees in employment tribunal proceedings are payable:

when a Claim Form is presented (“issue fee”); and
on a date specified in a notice accompanying the notification of the listing of a final hearing of the claim (“hearing fee”).